Jordan v Chief of Air Force [2015] ADFDAT 2

Jordan v Chief of Air Force [2015] ADFDAT 2

The appellant's original application for rental allowance was truthful when made and he was then eligible to receive the allowance at the sole occupant rate. The financial advantage charged was the later difference between the shared and non-shared rates after his circumstances changed. Because s 135.2(1) requires the relevant knowledge or belief of ineligibility to exist contemporaneously with the conduct relied on, the original application could not found guilt for the charged later overpayment. The prosecution had chosen not to run an omissions case based on a legal duty to report changed circumstances, and it was not appropriate to allow such a case to be pursued on appeal. The...

Jurisdiction
Australia
Judgment Date
17 July 2015
Procedural Posture
Appeal From Defence Force Magistrate / Appeal Against Conviction
Outcome
Appeal allowed; conviction quashed.
Legal Topics
['rental Allowance' 'obtaining a Financial Advantage' 'criminal Code Act 1995 (cth) S 135.2(1)' 'physical and Fault Elements' 'omissions' 'admissibility of Record of Interview']
['defence Law' 'criminal Law' 'evidence'] ['rental Allowance' 'obtaining a Financial Advantage' 'criminal Code Act 1995 (cth) S 135.2(1)' 'physical and Fault Elements' 'omissions' 'admissibility of Record of Interview']

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Procedural Posture

Appeal From Defence Force Magistrate / Appeal Against Conviction

Legal Issues

  1. 1 ['Whether the appellant was guilty of obtaining a financial advantage under s 135.2(1) of the Criminal Code Act 1995 (Cth) on the charge as prosecuted.' 'Whether the physical element of conduct and the fault element of knowledge or belief of ineligibility under s 135.2(1) must exist contemporaneously.' 'Whether a record of interview conducted by service police should have been excluded under s 90 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The appellant's original application for rental allowance was truthful when made and he was then eligible to receive the allowance at the sole occupant rate. The financial advantage charged was the later difference between the shared and non-shared rates after his circumstances changed. Because s 135.2(1) requires the relevant knowledge or belief of ineligibility to exist contemporaneously with the conduct relied on, the original application could not found guilt for the charged later overpayment. The prosecution had chosen not to run an omissions case based on a legal duty to report changed circumstances, and it was not appropriate to allow such a case to be pursued on appeal. The...

Court Disposition

Appeal allowed; conviction quashed.

Orders

  • ['The appeal be allowed.' 'The conviction of the appellant be quashed.']